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In Bocquet v Ouzid, 225 F.Supp.2d 1337 (2003) the former wife filed a
petition against former the husband pursuant to the Hague Convention
seeking the immediate return of the couple's child. The District Court
held that the child's habitual residence immediately before the date of
the alleged wrongful removal was France. The former husband did not have
the wife's permission to remove the child from France, and under French
law it was violation of the wife's custody rights. The wife was
exercising her custody rights at time of the child's removal. The child
was not settled in the United States, and the wife did not consent or
acquiesce in the child's retention in the United States. In order to
establish a prima facie case of wrongful removal or retention under the
Hague Convention, as implemented by International Child Abduction
Remedies Act (ICARA), a petitioner must show by a preponderance of the
evidence that the habitual residence of the child immediately before the
date of the alleged wrongful removal was in the foreign country; that
the removal breached the petitioner's custody rights under the foreign
country's law; and that the petitioner was exercising custody rights at
the time of the removal. A district court considering an International
Child Abduction Remedies Act (ICARA) petition cannot decide the
underlying custody dispute, but only has jurisdiction to decide the
merits of the wrongful removal claim. For purposes of the former wife's
petition under the Hague Convention the child's habitual residence
immediately before the date of the alleged wrongful removal was France,
though the former wife and former husband both traveled with the child
during the period they lived in France. The evidence established that
the family was living together in France at the time the former husband
left with the child, during the period relevant under Hague Convention
and ICARA, the child spent the vast majority of the time in France and
attended pre-schools there, there was no settled parental intent to
leave France, and former wife signed a three-year lease on her apartment
and former husband had applied for a temporary residency permit. The law
of the country in which a child was habitually resident governs
decisions as to whether custody rights existed at the time of removal,
and it permits judicial notice to be taken of that country's law. The
former husband did not have the wife's permission to remove child from
France, and under French law it was violation of wife's custody rights;
wife did not know that husband was planning to take child to Algeria,
she never gave him permission to do so, she immediately reported former
husband's actions to local police, and husband did not seek or receive
wife's permission to permanently leave France with child. The wife was
exercising her custody rights at time of child's removal from country of
his habitual residence; during her separations from child she was in
telephone and mail contact with him, even when former husband traveled
to other countries with child, wife would often meet them and spend time
with child, wife arranged for child to attend school in France, traveled
with him on vacations, and arranged for his childcare when husband was
out of the country. The Statute of limitations period began to run on
the former wife's petition against the former husband pursuant to the
Hague Convention on the date the wife confirmed the child's new address
in United States, and thus her petition was timely. Even if the husband
did not conceal the child's whereabouts in Algeria, she was unable to
utilize the Hague Convention there because Algeria was not a signatory
to the Convention, and she attempted to secure the child's return
pursuant to the Franco-Algerian treaty during that time. By the time she
was able to utilize the Hague Convention, the husband concealed the
child's whereabouts. The Child was not settled in the United States. The
husband did not offer any evidence that the child had been in school,
been involved in a play group, attended any religious institution,
played in any organized sport teams, or established any other
significant connections in United States. The child had a maternal
grandfather, an aunt, and a cousin in France, and had already attended
two pre-schools there. The purported agreement between the former wife
and former husband did not establish that the wife acquiesced to child's
retention in the United States. When the document was created, the child
had already been taken from France without the former wife's consent,
the wife had not seen him for six months, and although the wife
apparently attempted to work toward some resolution of the situation
directly with the husband, she continued to seek legal remedies both
through French courts and through international agreements, first
utilizing the Franco Algerian treaty and then the Hague Convention.
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